The North Carolina Court of Appeals recently published decisions in the following cases:
In Coffey v Weyerhaeuser Co., the Court,based on N.C.G.S. 97-38 in the Workers’ Compensation Act, was tasked with determining “whether [Barber’s] death occurred within two years of the Commission’s final determination of disability.” Dennis Barber, Sr. was diagnosed with asbestosis in 1997 and laryngeal cancer in 1998; he subsequently died in 2009. A settlement agreement was signed in October of 1999 and approved by the NC Industrial Commission in November of that year. The agreement in particular said “the date of approval of this Agreement shall be the date of final determination of disability by the Industrial Commission.” In order for death benefits to be paid, the death of an injured employee must occur within six years of the injury or within two years of a final determination of disability by the Commission. The Court held that the 1999 approval of the settlement, which addressed the issue of permanent disability, constitute a final determination, which rendered the plaintiff’s claim for death benefits untimely.
And in Carr v Department of Health & Human Services, the defendants appealed, contending that plaintiff’s cervical spine injury was not “caused, exacerbated, or aggravated” when she was injured in a 2008 fall. The Court of Appeals rejected their argument on causation because the expert physician stated, in part, that causation from the injury was “more likely than not.” The Court remanded on the issue of disability for the Commission to address prongs two and three of the Russell test.